Bar16 v Minister for Immigration

[2019] FCCA 180

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAR16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 180

Catchwords:
MIGRATION – Application for judicial review – error in interpretation – effect on credibility findings – ability of the Applicant to respond to questions materially affected – whether failure by Tribunal to make enquiries – delay in delivery of reasons – application upheld on grounds of error of interpretation but otherwise dismissed.

Legislation:

Migration Act 1958 (Cth), ss 424AA, 476

Cases cited:

Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464

Luu v Renevier [1989] FCA 804

Minister for Immigration and Citizenship v SZIAI & Anor [2009] HCA 39
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77
SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142

Applicant: BAR16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 913 of 2016

Judgment of: Judge McNab

Hearing date: 10 December 2018

Date of Last Submission: 10 December 2018

Delivered at: Melbourne

Delivered on: 1 February 2019

REPRESENTATION

Counsel for the Applicant: Dr A McBeth

Solicitors for the Applicant: Wimal & Associates

Counsel for the Respondents: Mr R Chaile

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 27 June 2016.

2. A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.

3. The First Respondent pay the Applicant’s costs fixed in accordance with the appropriate scale.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 913 of 2016

BAR16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. By way of an application filed 4 May 2016 and amended on

   
   

   12 November 2018, the Applicant seeks judicial review of a decision of the Refugee Review Tribunal (‘Tribunal’) dated 8 April 2016. The Tribunal affirmed the decision of a delegate of the First Respondent to refuse a grant of a Protection (Class XA) visa.

Background

1. The Applicant is a national of Sri Lanka. He is 33 years old, Sinhalese and Buddhist.[1]

   [1] Court Book 203 [11].

2. The Applicant alleges that, on 24 or 25 January 2010, he was helping a close friend, Chandradasa Naiduwavadu (‘Chandradasa’) put up posters supporting an opposition party candidate in the Sri Lankan elections. The Applicant alleges that while he and his friends were putting up posters, they were attacked by supporters of the incumbent President. It is said that Chandradasa was hit with an iron bar and had paste poured over his head, while the Applicant was threatened with violence and the assailants had pistols at the time of the attack. The Applicant claims that he drove Chandradasa to the hospital and that Chandradasa was in hospital for two to three weeks. He claims that soon after he was discharged, Chandradasa suffered a heart attack and died and ‘it became common knowledge that his death was related to the hearing he got.’[2]  

   [2] Ibid 203 - 204 [12].

3. It is said that Chandradasa’s widow then commenced legal proceedings about his death. Following the complaint, the Applicant received four or five telephone calls threatening him not to give any statements to the police.[3]

   [3] Ibid.

4. The Applicant alleges that, a couple of months after this incident, he was removed from a bus by police and detained for approximately 30 minutes at the police station before being removed. The Applicant interprets this incident as being caused by his political actions.[4]

   [4] Ibid [13].

5. The Applicant fears returning to Sri Lanka on the basis of harm from the Sri Lankan army because of his Tamil ethnicity, imputed political opinion and illegally leaving Sri Lanka.[5]

   [5] Ibid 116.

6. On 16 July 2012, the Applicant arrived by boat on Christmas Island.[6]

   [6] Ibid 202 [8].

7. On 8 November 2012, the Applicant applied for a Protection (Class XA) visa.[7]

   [7] Ibid 31.

8. On 11 September 2013, that application was refused by a delegate of the Minister.[8]

   [8] Ibid 107.

9. On 15 September 2013, the Applicant applied for review of the delegate’s refusal to grant him a Protection (Class XA) visa to the Tribunal.[9]

   [9] Ibid 128.

10. The Tribunal held a hearing on 28 January 2015 at which time, the Applicant gave evidence through a Sinhalese interpreter.

11. The Tribunal affirmed the delegate’s decision by a decision dated 8 April 2016.

Tribunal decision

1. The Tribunal found that there were significant inconsistencies in the Applicant’s evidence, particularly in regards to the timing of events and logical coherency. The Tribunal member also recorded that the Applicant’s credibility was brought into doubt because of the extended time he took in responding to questions and presenting ‘evasive and incoherent answers to simple questions’.[10]

   [10] Ibid 210 [45].

2. While the Tribunal member found that Chandradasa existed, based on media reports, the member found that the Applicant did not know Chandradasa personally. It was found that the Applicant had exploited the substantial coverage of the case in the media to insert himself into the events surrounding Chandradasa’s death.[11]

   [11] Ibid 211 [49].

3. The Tribunal member examined whether the Applicant would face harm or persecution as a result of being a failed asylum seeker. Though there would be some consequences to the Applicant for this course of action, it was found that a short term detention or fine does not amount to persecution for a Convention reason.[12] Based on this finding, the member did not accept that the Applicant would face harm if he was returned to Sri Lanka.[13]

   [12] Ibid 213 – 216 [61] – [69].

   [13] Ibid 216 [70] – [75].

Grounds of review

1. The further amended application, filed 12 November 2018, sets out the following grounds of review:

   1.The decision of the Tribunal was affected by jurisdictional error in that the applicant was deprived of a meaningful opportunity to give evidence and present arguments relating to the issues arising in the review, owing to ineffective interpretation.

   Particulars

   (a)The interpretation of the Tribunal hearing contained a significant number of omissions and misinterpretations, such that the ability of the applicant to present his case to the Tribunal and give cogent answers to the Tribunal’s questions was seriously undermined.

   (b)The Tribunal’s finding that the applicant gave “evasive and incoherent answers to simple questions” substantially contributed to the Tribunal’s disbelief of the applicant’s claims.

   2.The decision of the Tribunal was affected by jurisdictional error in that its failure to have regard to the corroborating evidence contained in the letter written by Chandradasa’s widow on the basis that it was not sworn evidence and the Tribunal did not have an opportunity to question the writer, in circumstances where the Tribunal made no request for the letter writer to be made available for questioning, amounted to a failure to consider the question raised by the material before it.

   3.The Tribunal constructively failed to conduct its statutory task by reason of the inordinate delay between the hearing and the Tribunal’s decision, in circumstances where the Tribunal’s assessment of the applicant’s credibility and demeanour at the hearing were material to the Tribunal’s decision.

Evidence

1. The Applicant relied on:

   a)Affidavit of Swarna Indranee Pragnaratne affirmed 12 November 2018. Mr Pragnaratne is an accredited Sinhalese language interpreter. The affidavit of Mr Pragnaratne establishes that he listened to a recording of the proceedings before the Tribunal and he then marked up the transcribed evidence showing where the translator omitted to translate questions put to, or answers given by, the Applicant and where there were mistranslations of the exchanges before the Tribunal; and

   b)Affidavit of Mylvaganam Wimaleswaran affirmed 12 November 2018. That person is the Applicant’s solicitor and a transcript of the evidence given before the Tribunal was annexed to that affidavit.

2. The Tribunal’s finding in relation to the credibility of the Applicant, in particular the credibility of the oral evidence that the Applicant provided to the Tribunal, were central to the Tribunal’s decision to affirm the delegate’s decision.

3. At [45] the Tribunal stated:

   I also indicated to the Applicant that I was concerned about his evasive and incoherent answers to simple questions. He gave answers to specific and simple questions that had no relevance at all to the question. For example at one point I asked him about the progress of the court proceedings and the police complaint Chandradasa's wife is claimed to have made, his answer was “Fonseka was put in jail”. When 1 asked why he was giving an answer that bore no relevance to the question, he said he wants to tell the big picture. I reiterated comments I had·made to him several times that the Tribunal wishes to hear his story about the specific claims he is making. The big picture may bring context but it appeared to me that he was evading the questions on many occasions.[14]

   [14] Court Book 210.

4. The annotated transcript relevant to the finding at [45] reads as follows:

   Member: What happened to the case filed? ......

   [BAR16]: We all fear for our lives. The government that was in power was elected. The person we supported went to jail. (underlined omitted; only last sentence interpreted)

   Member: How does that answer my question, "what happened to the action filed by Chandradasa's wife in regard to the complaint made to the police"? I asked you that question and you said that, “Fonseka went to jail”. I am trying to make the connection; what am I supposed to make out of this? That does not answer my question. As I told, it has been very difficult to get direct answers to simple questions. I am finding it difficult to understand. Is there any reason why? Why are you choosing to give me an answer that is not relevant to the question I am asking? (omitted all of the underlined and interpreted as follows).

   Interpreter: I am asking you a direct question; you don't answer that but go on with a lot of information. (underlined is a summarised version of above).[15]

   [15] Affidavit of Swarna Indranee Pragnaratne affirmed 12 November 2018, page 8, line 5 - 16.

5. At [48] the Tribunal found that the inconsistencies in evidence led to the Tribunal finding that the Applicant was not telling the truth:

   My concern about the inconsistencies does not arise from lack of accuracy of dates; and any reasonable approximation is acceptable in my view. In the present case even allowing for generous variations in approximating periods of time, I do not accept the applicant was telling the truth. I do not accept as reasonable variation in approximating periods of time in his statements to the delegate that when he fled to his uncle's, he remained there around two months and then returned home and lived in hiding, and to the Tribunal he stated that he stayed at his uncle one to one and half years and then he stayed at a friend's place (not in his home area) for a further year before leaving Sri Lanka to come to Australia, returning home only for visits. In his protection visa application he provided a list of his addresses in Sri Lanka and the periods he remained at each address. He stated there that he stayed with his uncle from January 2010 to March 2010 returning to his home address in Poramba village in March 2010 until June 2012. Elsewhere in his protection visa application he also stated that he worked as a musician in a band until June 2012. I do not accept as plausible that he feared staying in his home area because those who were responsible for the attack and threats to him were from his home area but did not fear visiting his home 20-30 times. I found it implausible that he would have developed such fear so soon after the incident as to flee the very next day leaving his 'very good friend, like a brother' seriously injured in hospital. For these reasons I find the applicant's evidence is significantly inconsistent.[16]

   [16] Court Book 210.

6. The following extracts are a sample of the examples of mistranslation:

   Member: So, why did you so quickly develop this level of fear, where you basically left your friend in hospital and I think you describe as a close friend-like a brother. What was it that caused you to develop this fear, like within three hours of putting your friend in hospital and going to a far away place like your uncle's? (underlined omitted and interpreted as: "You are asked why you developed such a great fear just by putting him in hospital?")

   Member: How do you think they knew your name and telephone numbers?

   [BAR16]: They come to know at rural level, because of other members of the party. Also, I had a band. (underlined omitted).

   Member: So you think....... What you say is they recognised you from “Asanaka and the Gang” band and therefore it was easy to get your phone number. Saw you and recognised at the time of the incident; did they say that? (underlined omitted and interpreted as: "When they telephoned you, did they say they can recognise you from the incident?”)[17]

   [17] Affidavit of Swarna Indranee Pragnaratne affirmed 12 November 2018 p 3, 4, line 29 – 26, line 1 – 5.

7. At one point during the hearing, the Tribunal member attempted to put his concerns regarding the Applicant to him in accordance with the principles of procedural fairness:

   Member: Mr. Asanka, there are a few things I would like to discuss with you. Firstly, you gave me a copy of the primary decision record-that's the letter the department sent you as to why you were refused. (underlined omitted in interpreting).

   Interpreter: I have to discuss somethings regarding the copies of documents you have given.

   Member: In that decision record, the decision maker refers to some sort of differences in the way you told the series of events, when it took place and so on and he refers to some inconsistencies- significant inconsistencies. (omitted all of the underlined and interpreted as: “In there the officer has detailed some events and occurrences”. Translation distorted)

   Member: Do you know what I am talking about?

   [BAR16]: I don't understand.

   Interpreter: Not clear.

   Member: I thought you will be familiar with the decision the department gave you; you might have even discussed with your representative. Just wanted to ask if you wanted to comment on any of this at all? (underlined omitted and interpreted as: “Wanted to just ask you if you had any questions regarding the decision given by the department. The reasons for rejections has been given there, the department of immigration”).

   Member: Is there anything you wanted to comment on, in connection with what the primary decision make and the department said about your claims? (underlined omitted and whole passage translated as: “You may have seen copies”).

   [BAR16]: Copies of what? Regarding what?

   Member: Anything in the decision record; I am giving you a simple invitation to comment on what the delegate said in assessing your claims – basically, your story.

   [BAR16]: I haven’t read anything like that.

   Member: Okay, we will come back to that if necessary. I just wanted to give you the general invitation to comment because he obviously disagreed or didn't accept with what you said for various reasons. I simply thought I will give you the opportunity, if you wish to comment. (underlined omitted and interpreted as: “He has given some general information as to why it was rejected. I generally asked, if you had anything – nothing very special about it”).

   …

   Member : Generally, at times I found you to be evasive in answering the questions put to you that raised some concerns in my mind about some of the questions I raised about the credibility of the information given me. (underlined omitted and interpreted as: “ At certain times when I ask you a question, you keep thinking for a while before you answer. I have a doubt about that”).

   Member : And, I also found some information you gave me to be not consistent with the information you gave elsewhere; such as, in the written statement and the application form. (underlined distorted interpretation: 'written statement' misinterpreted as ‘stated verbally')

   Member: So that's giving me some concerns about the credibility and therefore, what you are saying; what you are telling me (underlined omitted and interpreted as: I have to think about the credibility of what you are saying”).[18]

   [18] Ibid 10 – 11.

8. The Applicant, at one point in the hearing, even suggested that there were translation issues and that he thought he was not being understood properly:

   Member: When I asked you repeatedly, “have your family told you anything about anything relating to your fears of returning to Sri Lanka”, you said-after repeating the question, “Fonseka went to jail”. Now you say to me, it's your parents who told you that it was an independent group pressing the government to investigate. You are nodding; you are understanding my English.

   Interpreter: (began interpreting but, was interrupted by the client.)

   Client: No I didn't say that; I think we have an issue here with the language. The problem of not understanding. There is a long story to be related. (underlined omitted by Interpreter).[19]

Consideration

[19] Ibid.

Ground one

1. The question of whether standards of interpretation affected the fairness of a hearing depends on the circumstances and nature of a particular case. In SZRMQ v Minister for Immigration and Border Protection [2013] FCAFC 142 (‘SZRMQ’) Allsop CJ held:

   [9]The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.

   [10]How the decision-maker approached the matter may (emphasis original) be critical. If an error of interpretation or translation can be seen to lead to a material and adverse finding relevant to a decision against the person, the unfairness of the hearing is self-evident. It may not be possible, however, to show how one or more inaccuracies affected the decision, since it will often be impossible to show what the decision-maker would have done with different information. This is especially so if the decision is based in part, or in whole, on credit. It is at this point that the focus upon the process becomes important. The enquiry is not to investigate, and the applicant’s burden is not to establish, a precise causal link between any irregularity and an adverse result, but to assess whether the decision-making process (including the hearing and the making of the decision) was fair. Even if one cannot show an operative causal influence of any irregularity upon the decision, it may still be that the irregularity might reasonably have had such an effect through its materiality or repetition or context. Any such conclusion may affect the legitimacy of the process in that it may not be able to be concluded that it was fair (emphasis added). Such may be expressed as requiring the appearance of a fair hearing: cf Assistant Commissioner Condon v Pompano 295 ALR at 693 [209]; NIB Health [2002] FCA 40; 115 FCR 561 at 583 [84]; R v Tran [1994] 2 SCR 951 at 988, Lamer CJ, writing for the Canadian Supreme Court otherwise comprised of La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ, in a passage cited by Kenny J in her Honour’s influential decision in Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507; 92 FCR 6 at 19-20 [30]. It can, in this context of adequacy of communication through interpretation, be perhaps better expressed as requiring that the hearing be fair. How, it might be asked rhetorically, can a hearing be described as fair, when it can be shown that real and potentially material errors of substance occurred in interpreting or translating a person’s version of events to a decision-maker, being errors that may well have affected the decision in a real way, though such causal effect cannot be demonstrated one way or another?

1. The errors of translation in this case lead to the conclusion that the hearing was unfair as there are material errors that may have resulted in the Applicant being unable to convey his story and respond to questions in a clear way. This in turn might have affected the Applicant’s credibility before the Tribunal. For example, the exchange set out in [20] above, the Tribunal asked a pointed, detailed question and what was interpreted was a more general question. Similar remarks apply to the exchanges referred to in [23] above. Whole passages of directed questions from the Tribunal are not translated or effectively paraphrased so that the Applicant could respond. Critically, the Applicant was effectively denied the opportunity to respond to comments made by the Tribunal that he was evasive in his responses to questions.

2. Similarly, the Applicant was deprived of an opportunity to comment on perceived inconsistencies in evidence recorded in the delegate’s decision as the decision record was not translated to the Applicant.

3. Given the reliance that the Tribunal placed on the Applicant’s credibility and those findings in part were founded on the Applicant’s responses or the lack thereof to matters raised by the Tribunal but not translated to the Applicant, I find that that the errors in translation may have rendered the hearing unfair and therefore there is error which is jurisdictional in nature and the orders sought by the Applicant should be made.

Ground 2

1. At [52] of its decision, the Tribunal stated the following in relation to the weight it accorded to a statement provided in October 2013 to the Applicant’s lawyer, purported to have been given by Chandradasa’s widow:

   I have considered the statement claimed to have been provided to the Applicant’s lawyers in October 2013 said to have been given by Chandradasa’s widow. I note that it is not sworn evidence and I did not have the opportunity to question the purported writer. In any event it does not allay my concerns about the credibility of the Applicant’s account and the findings I have made on all the other evidence. For this reason, I have placed very little weight on the statement.

2. The Applicant submits that the Tribunal was in error in failing to conduct a review “in the manner required in particular by remaining open to be persuaded by corroborative evidence, properly considered that the Tribunal’s preliminary view of the applicant’s credibility was wrong”.[20]

   [20] Applicant’s submissions filed 13 November 2018, 5 [25].

3. The Applicant submits that the Tribunal had the power to seek further information from the Applicant, including to authenticate the document or to hold a further hearing where the purported author of the document could be invited to give evidence. In failing to take these steps, with the resulting effect on the Tribunal’s tentative findings as to credibility, the Tribunal fell into jurisdictional error.

4. I accept the First Respondent’s submission that as the Applicant was legally represented before the Tribunal, it was a matter for the Applicant to take steps to ensure that the evidence that the Applicant sought to rely on was sworn and otherwise authenticated. It is not for the Tribunal to make the Applicant’s case for him: Luu v Renevier [1989] FCA 804 [17].

5. Further, the First Respondent points out that the author’s contact details were not included in the letter and otherwise submits that the weight that the Tribunal places on the document is a matter for the Tribunal and, in this case, the Tribunal has explained its reasons. I accept that submission. In Lee v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 464 French J (as he was then) stated at [27]:

   In this case, the applicant was represented by migration agent. The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances.

6. Further the question of the authenticity of the letter and the veracity of its contents were not matters which would be ascertained easily by the Tribunal simply calling a person who purported to be the author of it, if it had that person’s details: cf Minister for Immigration and Citizenship v SZIAI & Anor [2009] HCA 39 [25].

7. For these reasons I dismiss ground two.

Ground three

1. The Applicant submits that the delay of 14 months between the hearing and the date of the decision (8 April 2016) means that ‘the Tribunal’s ability to assess the Applicant’s credibility fairly…was seriously impaired’.[21] It was said that the experience of the hearing was no longer fresh in the Tribunal’s mind and the Applicant was deprived of an advantage that appearing at the Tribunal hearing was intended to provide.

   [21] Ibid 8 [41].

2. In NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77 (‘NAIS’) Gleeson CJ stated at [5] that the ‘circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare’.

3. At [9], His Honour noted: ‘a procedure that depend significantly upon the Tribunal’s assessment of individuals may become an unfair procedure if, by reason of some default on the part of the Tribunal, there is a real and substantial risk that the Tribunal’s capacity to make an assessment is impaired’.

4. Further, at [10], His Honour noted in relation to whether the appellant must demonstrate error on the part of the Tribunal because of delay:

   The appellants in this case do not have to demonstrate that the Tribunal's assessment of them probably would have been more favourable if made reasonably promptly. What they have to demonstrate is that the procedure was flawed; and flawed in a manner that was likely to affect the Tribunal's capacity to make a proper assessment of their sincerity and reliability. The procedures required by the Act were designed to give the appellants a reasonable opportunity to state their claims and to have those claims competently evaluated. If the Tribunal, by its unreasonable delay, created a real and substantial risk that its own capacity for competent evaluation was diminished, it is not fair that the appellants should bear that risk. The delay on the part of the Tribunal in the present case was so extreme that, in the absence of any countervailing considerations advanced in the reasons of the Tribunal, it should be inferred that there was a real and substantial risk that the Tribunal's capacity to assess the appellants was impaired. That being so, the appellants did not have a fair hearing of their claims by the Tribunal.

5. Whilst the delay in this case is considerable, I am not persuaded that the delay of itself gave rise to a real and substantial risk that the Tribunal could not competently evaluate the evidence. In this case, the delay was not of the same order as what was described as ‘inordinate delay’ by Gleeson CJ in NAIS, which was a delay of four years.

6. In my view the more pressing and obvious impediment to the Tribunal’s function was the quality of interpretation and the effects that had on the findings on credibility.

7. For these reasons I dismiss ground three.

Conclusion

1. For the reasons set out in relation to ground one, the Court will make the orders sought by the Applicant and remit the matter for rehearing before the Tribunal according to law.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge McNab

Date: 1 February 2019